Motion Filed on the Karadzic-Holbrooke Cooperation Agreement

by Kevin Jon Heller

Disclosure: I am one of Dr. Karadzic’s legal associates.  This post is offered with his consent.

The defense team has just filed its definitive motion arguing that the Karadzic-Holbrooke cooperation agreement — in which Holbrooke promised Dr. Karadzic that he would not be prosecuted at the ICTY if he cooperated with the international community’s efforts to bring peace to the Balkans — requires the indictment against Dr. Karadzic to be dismissed.  Contrary to many news reports, the ICTY has not squarely addressed the legal merits of that argument; its previous statements mischaracterizing the cooperation agreement as an “immunity agreement” were made in the context of disputes over discovery.

The full text of the motion, along with its 29 annexes, is available here.  The motion raises a number of very complicated legal arguments concerning the enforceability of the agreement, but the annexes establish beyond all doubt that Holbrooke did, in fact, enter into the agreement with Dr. Karadzic.

UPDATE: Again proving that the media neither understands the legal issues in the case nor cares to do the reading necessary to understand them, Reuters is continuing to describe the Holbrooke-Karadzic agreement as an “immunity deal,” despite the evident fact that it’s not.

21 Responses

  1. why would Holbrooke keep lying then?

    and why would some of the witnesses not talk to Mr Robinson?

  2. Jonas,

    Is that really a serious question?  Holbrooke has been lying about the agreement for years; do you really expect him to change now?  And it’s obvious why some of the witnesses (though certainly not all, as the annexes demonstrate) wouldn’t talk to the defense team — they don’t want to help Dr. Karadzic prove the existence of the agreement.

  3. I must say when I saw the early newspaper reports indicating that Karadzic was going to run this argument that I felt a little tingly. If the court knock it down, then that puts at jeopardy any negotiated settlement in any other conflict. If they accept it, they destroy individual responsibility and create a new defence. In my view,  its more sceptic than the Bashir indictment.

  4. You forgot to call him “Dr.” in the last paragraph.

  5. brdo,

    “Holbrook-Dr. Karadzic” just looks too ugly…

  6. Fascinating. am looking forward to more on this.

  7. Kevin Jon,
    I just read the motion and annex AB. In my view, it fails to establish any link between Holbrooke and the Security Council. Holbrooke was a US special envoy. US is one of the members of the SC. Holbrooke was a mediator trying to stop the bloodshed that was going on for three years of Bosnia and which had culminated in genocide.
    His few statements you refer to are made in that context, none of them, in my view, establish that he had any de jure or de facto link with the Security Council. Even so, nothing in the motion or the annexes shows that the Security Council itself has the authority to in fact grant immunity to someone prosecuted by the ICTY. Let alone that a representative of its one member can do so on behalf of the entire Council. Why did the Council not provide for such an option when it adopted the ICTY Statute in 1993? Why did it not give any hint in its resolutions or anywhere, that that option was at the table, if it meant that the war would be stopped?
    And even if there was an agreement, why did Karadzic not come out with it before? When Milosevic was arrested he could have been pretty sure that it would not have been honoured. Why did he not surrender, or lead a normal life if he had this “out-of-jail” card?
    The whole line of reasoning makes no sense. However, what interests me is the following. Considering all the media attention that Karadzic’s lawyers are giving this motion, I wonder whether you really believe in the argument advanced in the motion? I understand that as a lawyer representing a client you sometimes need to follow the instructions of your client despite your advice to the contrary. But when do you go beyond what reputable lawyers like Peter Robinson and you are assigned to do, provide best legal advice you can give, and become an extended arm of your client’s political game? I hope you all maintain your objectivism and do not more than you are assigned to do, and what you need to do, provide Karadzic with best legal advice you can give – but that you do not step out of that role. The rest of these proceedings will tell.  

  8. Participant,

    Your questions are both articulate and important.  I’m sorry that, for obvious reasons, I can’t answer them.  I will say, though, that I am completely convinced the deal was made.  The legal effect of the deal is for the Tribunal to determine.

  9. Sorry for missing the obvious (IANAL) but how is a deal – that would effectively ensure no prosecution will take place for alleged crimes committed – such as this one not an “immunity deal?” What else is immunity if not the promise to be free from prosecution for a specific crime?

  10. We are not arguing that he is immune from prosecution.  We are arguing that — via Holbrooke and the Security Council — the ICTY agreed not to prosecute him if he withdrew from public life.  The judges will ultimately have to determine whether Holbrooke’s promise binds the Tribunal.  But the situation is, in principle, no different than a situation in which a prosecutor agrees to drop charges against a suspect in exchange for his cooperation — testifying against higher-ups, wearing a wire, etc.  Would you describe such a cooperation agreement, in which both sides benefit, as an “immunity deal”?

  11. This is an interesting issue indeed, and the Tribunal ruling on it one way or another will definitely put some dots on “i’s” both from a legal perspective and historical one.

    On the other hand, just pleading cooperation agreement on THIS literally creeps me out. Just look through the tables at the end of his recent amendment indictment.  This is small scale Adolf we are talking about, and by Adolf I mean Hitler, not Jelisic. This is genocidal. Such crimes must be investigated and punished, otherwise, what international justice are we talking about?

  12. I have some legal training and experience, albeit quite limited on the criminal side. But if I was trying to communicate this purported deal to even a reasonably sophisticated tertiary-qualified layman (such as, perhaps, a journalist or an editor), I would not feel that I was being hopelessly inaccurate to call it an immunity deal.

    Perhaps I would use ‘conditional immunity deal’ to be clear.

    And whilst my suspicion is that the argument has Buckley’s, I will be interested to see the result. I don’t share Participant’s reservations in the final paragraph, either, I think you were absolutely right to run the argument if you think it has even a credible glimmer of hope.

  13. Thanks for the response.

    “We are arguing that — via Holbrooke and the Security Council — the ICTY agreed not to prosecute him if he withdrew from public life.” To me this still sounds like a deal in which participants agree no prosecution will take place: i.e. it effectively grants immunity.

    “Would you describe such a cooperation agreement, in which both sides benefit, as an “immunity deal”?” Yes.

    Of course, this is my common sense approach, whether this actually fits the “legal definition” of immunity I do not know, but this is a small sample of definitions I found:

  14. The counterbalance, of course, to passer-by’s argument is the question of how many innocents you wish to sacrifice in the name of making sure the guilty man pays.

    This was my concern with Pinochet.  How many people will die from future dictators who look at his case and refuse to step down peacefully, all the for satisfaction of hauling an old man before the court, and robbing him of what, a year or two at the end of his life?

  15. As I understand it M Gross, you are not referring to the classical saying about letting guilty men free rather than killing an innocent one, or indeed vice-versa, but about the case in your second paragraph.

    That was also a counter-balance offered in the Al Bashir case, iirc.

    It sucks to hell and back. Much better to place your faith in a steadily-ratcheting rate and intensity of prosecutions and investigations as raising the entry cost of malign dictatorship (and potentially lowering the entry cost for the would-be replacements – anyone mounting a coup in Sudan could just ship the prick off to the Hague).

    Not to mention the basic interest in whatever minimum accountability we are able to impose on these people.

  16. Finding the debate very amusing. Participant makes the really interesting point i.e. can the deal be imputed to the Security Council? It really is a legal theory question that goes to the basis of the international organisation. Is the council the sum of its members? One State? One actor in one state? Does it depend on what state it is? It is a real pandora’s box. I think as a defence it has legs. The ICTY’s powers derive from the SC if the deal exists and belongs to the SC the court will have to do a very neat body swerve to say that they cannot be bound by it (they are not the ICC and therefore ‘technically’ outside the scope of SC determinations/decisions/etc).

  17. Even assuming the existence of the above mentioned agreement, I really do not see why the ICTY would be obliged with any of such kind of agreements, including this one.

    Competences of the ICTY are defined and no personal responsibility can be excluded just because someone prommised something to someone. Proving the fact that Holbrook was acting as a “voice” of the whole international community is vasting the time, and again not relevant in this particular case.

    In my opinion this is simply buying the time.

    p.s. I do not deny the existance of this agreement but as a iurist I don’t find it relevant.

  18. Iheke Ndukwe got the point right; this whole non-prosecution arrangement deals with the fundamental questions of jurisdiction and powers of the Tribunal; all the Defence is asking for is a determination whether the deal took place-if it did, its implications are not so clear

    p.s. As a jurist, I find it totally relevant – especially in the field of international criminal law, it would be naive to argue that the lex has no laccunas nor any need of comprehensive interpretation and clarification

  19. @Patrick
    Just to make sure you do not misunderstand the point I made in my last paragraph. I am not saying that the argument should not be run. Do it, even if as a counsel you think it makes no sense, if it is your client’s’s instruction and it does not really harm him, go for it!
    One particular concern I had here is the question whether it was really necessary to organize a press conference and appear on television when you’re filing a motion such as this one. This is assuming that the press conference was organized by Karadzic’s legal associates, as they are the ones who knew when it was to be filed (I could be terribly wrong on that). At the ICTY, motions are usually filed by email, without any fanfare. I guess I would have preferred the associates to pass the media attention on this one, and save it for the future, when they are really convinced that a right of their client is being jeopardized. In my opinion, this whole issue is powered by Karadzic’s will to compromise Holbrooke, or the US, for making a deal with someone they refer to as “Balkan’s Osama bin Laden”. In my opinion, the associates should provide him with the best legal argument they can come up with on the issue (which they have done) – but do nothing more than that, i.e. appear in media (only on this particular question). Karadzic’s political wing can do that and he has done it enough himself at the status conferences.   

  20. Thanks for the clarification, participant, I hadn’t got that at all! That’s a reasonable point, as far as I can see, and makes a lot more sense of your original comment, too.

  21. There was a press conference?  See what I miss because I live in Australia…

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